By Rudman Winchell Anne-Marie L. Storey, Esq.
In a new opinion interpreting the FMLA, the federal district court in Connecticut held that “cluster headaches” were covered by FMLA leave time and essentially enabled the employee to change the very nature of the job and its essential functions.
The employee was employed by the Connecticut Department of Transportation. He was a member of the union. His job required mandatory overtime, which was undisputedly an essential function of the position. The employee argued that his cluster headaches, which were described as being worse than migraines, were triggered by the excessive work schedule with overtime. Thus, the employee’s doctor limited his work to no more than 8 hours per day with a complete prohibition against overtime. Under the employee’s union contract, if he was unable to perform the essential functions of the position, the DOT was to search for a position with “less arduous duties” but if none were identified he would have to either apply for disability retirement or the DOT would initiate separation.
In response, the employee submitted a medical certification form that indicated he was not currently incapacitated but estimated that he would be at least four times a year for up to three days at a time and that he would be unable to work at all during such periods. The doctor also said he could not work more than 8 hours a day because that “precipitates” the headaches. Upon receiving this form, the DOT assumed he was applying for FMLA leave and sent him those forms for completion. There were some issues about the forms not being completed entirely. Ultimately, the DOT informed the employee that it had sought less arduous positions for him in accordance with the union contract but was unable to find anything. It notified him that if his disability retirement application was denied, the DOT would begin the separation process.
While the employee was on leave, he requested intermittent leave in the event of overtime. He was informed he was not eligible for FMLA because he had not worked the 1250 hours in the prior 12 months. The employee then asked for and received a full release to work from his doctor because he could not afford to be out of work. He was told that if he suffered from the headaches, he would have to take a full sick day, not just be excused from the required overtime, and that he was subject to discipline for refusing overtime. The employee then quit his position to work elsewhere. He also brought a lawsuit alleging an FMLA violation.
The employer argued that even if the employee was eligible for FMLA time and suffered from a serious health condition, he was seeking something not provided by the FMLA, that is, to be relieved of having to work overtime again, ever. The employer argued that he should only be entitled to medical leave during the times he was actually incapacitated by the headaches, not the time to avoid overtime that triggered the headaches.
The court rejected this argument. It found that the FMLA covers leave taken to avoid the onset of illness. As an example, the regulations refer to an employee with asthma who is unable to report to work because his doctor has advised the employee to stay home when pollen counts exceed a particular level. It further noted that the FMLA leave is available precisely for situations when an employee is unable to perform the essential functions of his position due to a serious health condition. It is only when the FMLA is exhausted does an employee’s inability to perform an essential function become relevant.
Finally, the court acknowledged that the employee was using FMLA time to essentially convert the very nature of his position from one with mandatory overtime to one without any overtime (assuming he had enough FMLA time to cover the overtime). Nevertheless, the court discussed the fact that the DOL was aware of this potential result and that nothing in the FMLA prohibited the outcome. In this sense, the court opined that the FMLA is not the same as the ADA and whereas the ADA does not require an employer to eliminate an essential function or provide accommodation that is an undue hardship, there are no similar provisions in the FMLA.
This case emphasizes the need to evaluate claims for changes in job duties and/or leave under both the FMLA and ADA to determine the appropriate course of action.